Parallelism in EU and US Competition Law
New Horizons in Competition Law and Economics series
Chapter 3: First evidence of the ‘oligopoly problem’ in the enforcement of EU antitrust laws
Nowadays, collective dominance appears as a broad category which embraces any kind of anti-competitive parallelism realized by independent companies that jointly enjoy market power. Its current configuration is the result of a remarkable evolution guided primarily by the European Commission and Courts. The starting point of this process was an opaque formulation of the EU Treaty and, in particular, the mention in art. 86 (now 102) of the dominant position of one or ‘more undertakings’. When the EU Treaty came into force, the meaning of dominance itself and the criteria for its assessment were extremely controversial. In addition, the expression ‘more undertakings’ was originally intended to allude to the market power of the corporate group. Many factors have fostered the development of collective dominance from the original to its current meaning. Some factors were intrinsically connected to the EU antitrust debate, pertaining to the interpretation of several controversial or unclear notions included in EU competition law – this was the case of concerted practices, for example. Other factors, although not strictly connected to EU competition law, were also extremely important for this process – US antitrust debate and, in particular, the tension between the Harvard and Chicago schools, as well as the concrete explosion of the oligopoly problem. In particular, the need for addressing tacit collusion – that is, anticompetitive parallelism realized in the absence of agreements and primarily based on oligopolistic interdependence – has promoted this evolution and led to identification of the notion of collective dominance as a possible means for addressing mere anticompetitive parallelism.
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